MassDEP and the Commonwealth’s office of Coastal Zone Management recently proposed draft changes to the Designated Port Area and Facility of Public Accommodation regulations under the Chapter 91 program. The draft for public comment, including a summary of the changes and redlines of the regulations, can be found here. Information on submitting public comments can be found here. Comments are due by Monday, May 9th.

The changes are summarized as follows:

Facility of Public Accommodation Regulations

Chapter 91 regulations generally require the provision of “Facilities of Public Accommodation” (FPAs) on the ground floor of buildings within Ch. 91 jurisdiction. FPAs are spaces that provide goods and services directly to the transient public (such as retail and restaurants). In certain areas of the Commonwealth, such spaces have gone vacant and unrentable, due to low foot traffic or other viability concerns. MassDEP is now proposing to add some flexibility to these requirements, by creating a new category of “Facility of Limited Accommodation” (FLAs) that could in some cases be substituted for the FPA requirement. FLAs would include spaces that provide goods and services to the public by appointment or on enrollment (such as medical facilities and child care providers).

Under the new regulations, License applicants could request flexibility to substitute FLAs for FPAs in up to 50% of the ground floor space and to position the FPAs anywhere within the ground floor. MassDEP would review and consider requests for this flexibility from both new license applicants and existing licensees. Applicants would have to show that preliminary marketing efforts demonstrate that the flexibility is warranted. MassDEP would seek concurrence from the local economic development authority that the area lacks sufficient development to support the standard FPA requirements. In exchange for this flexibility, applicants would submit for MassDEP’s approval a proposal to fund a specific project (construction or programming) approved by MassDEP proximate to the project site. The funding would equate to 20% of the Net Operating Income of the FLA spaces.

Designated Port Area Regulations

CZM is proposing additional revisions to the Designated Port Area (DPA) regulations. The goal of these revisions is to provide greater flexibility in the types and locations of uses within the DPA. The revisions focus on the following three topics:

Supporting Uses – Supporting uses are those that provide direct economic or operational support to a water-dependent industrial use. Currently supporting uses are not permitted on pile-supported structures. CZM proposes allowing these uses to be located on pile-supported structures within the context of a Municipal Harbor Plan / DPA Master Plan.

Accessory Uses – Accessory uses are those that are integral to the function or construction of a water-dependent industrial use (such as a ticketing office or accessory parking). Currently accessory uses are allowed on pile-supported structures only in limited situations and accessory parking is never allowed in this location. CZM proposes to loosen these restrictions, permitting accessory uses including parking to be located on pile-supported structures subject to certain conditions.

Recreational Boating Facilities – Recreational boating facilities are not currently allowed within DPAs. CZM proposes to permit such facilities in limited circumstances, including: (1) maintenance of a facility authorized prior to enactment of the DPA regulatory prohibition; (2) facilities that have nine or fewer recreational berths authorized in connection with a boatyard; and (3) facilities that have nine or fewer recreational berths approved under a DPA Master Plan, with size and location to be determined in Ch. 91 licensing process.

Water Dependent Industrial Uses – CZM proposes to expand the definition of Water Dependent Industrial Uses to include other emerging uses. CZM is looking for additional uses for inclusion, but has initially proposed including: marine technical and scientific research; on-shore support uses related to coastal/off-shore structures; new vessel technology and systems for maritime transport; and facilities for R&D and treatment of marine species.

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Kevin Conroy is a partner in the firm's Administrative Law Department, where he maintains a regulatory and government investigations practice with a primary focus on the health care and energy sectors. More

Tad Heuer’s practice focuses on advising both private and public sector clients in two main areas: the development of government strategies at the federal, state and local levels, and on matters pertaining to real estate, permitting and land use development. More